What happens if elections chiefs can’t make recount deadline? State says keep counting.

Employees at the Palm Beach County Supervisor of Elections office, left, duplicate damaged ballots under the watchful eyes of political observers, right, during a recount, Tuesday in West Palm Beach. (AP Photo/Wilfredo Lee)
Employees at the Palm Beach County Supervisor of Elections office, left, duplicate damaged ballots under the watchful eyes of political observers, right, during a recount, Tuesday in West Palm Beach. (AP Photo/Wilfredo Lee)
Published Nov. 14, 2018

What happens if Florida elections offices fail to meet Thursday's looming deadline for a machine recount of ballots in the state's tightly contested races?

Keep counting, says Florida's secretary of state.

A spokeswoman for Secretary of State Ken Detzner said Tuesday that counties should continue counting past the deadline so that final tallies can be included in official results. At least one elections supervisor, Palm Beach County's Susan Bucher, has said she does not believe her office will make the deadline in at least three races and will complete a tally only for the bitter fight between Gov. Rick Scott and U.S. Sen. Bill Nelson. Late Tuesday, she announced another delay: her overworked machines had faltered, giving incorrect numbers for early ballots, and would need to be restarted.

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But if counts are completed by the deadline for the state to certify results on Nov. 20, "it would include whatever the latest results are from the county," said spokeswoman Sarah Revell.

What's not clear is what happens if counts are unfinished by the deadline in other races, and what impact that might have on determining a hand recount, the results of which are due Sunday, and which relies on machine counts to find problem ballots in need of closer scrutiny. It also means where machine counts are not completed, supervisors would need to conduct both the machine and manual counts at the same time.

"Certainly if counties continue doing machine counts past Thursday, it makes meeting that Sunday deadline that much harder," said Marc Elias, an attorney for Nelson.

If properly cast votes are not included in the final tally, it could intensify the ongoing legal skirmishes into a full-blown state constitutional crisis, said University of Miami constitutional and election law expert Frances Hill.

"The idea we're going to say Florida can vote, but we're only going to count the votes we have time to count is untenable under American election law," she said. "We had this artificial deadline in the Bush vs. Gore mess and the (U.S.) Supreme Court used that to throw the Florida courts out of the picture and just take over."

On Tuesday, Democratic candidate Jim Bonfiglio narrowly missed winning an unusual extension to the recount, when Leon County Judge Karen Gievers said she would grant a five-day extension in a telephone conference. Bonfiglio lost the race for a Palm Beach County state House seat to Republican Mike Caruso by just 37 votes and filed his lawsuit after Bucher said she would not be able to recount his race on her aging machines, which only count one race at a time, by the Thursday deadline.

But before the judge could put the order in writing, attorneys for Detzner filed a notice to move the case to federal court, taking away her jurisdiction. A federal judge has ordered attorneys to submit arguments by 5 p.m Wednesday opposing Bonfiglio's request for an extension.

Further problems developed Tuesday night in Palm Beach County when the county's aging voting machines overheated and spit out incorrect totals, affecting about 175,000 early vote ballots, according to news reports. The votes, which had taken more than a day to count, will have to be recounted. Bucher told reporters the county flew in technicians to repair the machines.

Meanwhile, a change in margin only matters right now in the governor's race. Nelson and Scott's race and the contest between Republican Matt Caldwell and Democrat Nikki Fried for agriculture commissioner have already met the threshold for a manual recount. But the gap between the governor candidates, Republican Ron DeSantis and Democrat Andrew Gillum, sits at .41 percent, which would need to shrink to at least .25 percent for a hand count.

However, the machine recount process also identifies problem ballots for the manual recount, so completing the machine count could factor into the hand count.

Republicans have bitterly argued to stick to deadlines and accused Democrats of trying to cheat the system.

Both President Donald Trump and Scott have raised the specter of voting fraud, without citing evidence, and on Monday, Trump tweeted a demand that the state "Must go with Election Night!" Sen. Marco Rubio has called Broward's election office 'dysfunctional' and accused Bucher in Palm Beach of "disrupting our democracy."

Gillum has said he wants the vote to continue, whether or not it matters to his race.

"You have to wonder what's going on when… the president of the United States takes to Twitter not once, not twice but three times to say we ought to stop the count," he said Monday evening at St. John Missionary Baptist Church in Boynton Beach. He was scheduled to appear Tuesday night at an Orlando church.

Republican accusations of voter fraud, and fierce opposition to recounts that are not expected to generate huge changes, left some elections experts puzzled.

"I can understand Trump because he's Donald Trump, but I don't understand Scott. He's undermining the legitimacy of his own election," said University of Florida political scientist and Brookings Institution fellow Michael McDonald.

"My guess is that we end up Thursday, after all this flurry of activity, with the gap not narrowing significantly at all and then there's just not any purpose of doing additional legal work," he said.

What will need to be done is yet another examination of state election laws, Hill said.

"It's going to be really important to figure out why this happened and how it happened," she said.

But first things first: "Right now I can't even see how it's responsible to even speculate on why and how. We need to take the position that the founding principles of Florida election law is to determine the interest of the voter and counting votes, and I believe Florida law does not prevent us from doing that."